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Enhancing Public Accountability: Key Elements of the Public Office (Accountability) Bill 2025
Kirsty Cook
In my role, I am seeing more and more cases of financial abuse/mismanagement of client’s funds by a previous deputy or attorney. This is a worrying trend given the increasing number of applications/registrations going through the Court of Protection. Although the actions leading to an abuse of client’s funds may not always be intentional, they could still lead to an investigation by the Office of the Public Guardian (“OPG”). This blog considers one such scenario.
Once a deputy/attorney is appointed, whether this be a professional or lay (non-professional), one of the first steps is to register all known accounts held by the person to whom the deputyship/LPA relates, known as “P”.
The deputyship Order or registered LPA is sent or taken to the bank and the details for the new deputy/attorney are added to the bank’s system. The account is then registered in the name of the deputy/attorney and P. The new deputy/attorney will have access to the account to use the funds for P and in P’s best interests. The funds do not legally belong to the new deputy and P is still the owner. The account name should be registered as such:
‘[Name of deputy] as deputy/attorney for [Name of P]’
This seems like a fairly simple process, and it should be in practice. However, it has led to a number of issues that could have potentially devastating consequences for P.
Cause for concern arises when the new deputy/attorney either registers or opens a new account in joint names with P, whether this be intentional or not. What is the distinction you may ask? An account opened in joint names, and the funds held within it, are seen as legally belonging to both the account holders. In many cases, the funds have solely derived from the income or assets previously held by P so it is not advisable to open a joint account whereby the deputy/attorney and P are treated as joint legal owners.
This simple error could lead to difficulties in managing the account and, in the worst cases, potentially criminal and/or financially abusive actions. For example, P holds a sole account which is registered as a joint account by the deputy/attorney. P also holds other accounts and investments which are all closed and transferred to the jointly held account. The deputy/attorney is treated as owning the funds within the joint account equally with P. The deputy/attorney could then withdraw/spend the funds held within the account without question by the banks.
Individual banks will have their own practices/policies when it comes to these processes, as well as potential safe guards to such circumstances. However, the safe guards in place are not always sufficient to prevent these events from occurring and even if brought to the attention of the banks, there may be little by way of recourse to seek compensation for the funds lost.
Issues may also occur on the death of P if the account remains in joint names. The funds held within the account will be treated as belonging to both the deputy and deceased, and so will pass wholly to the surviving account holder.
It may not always be the intention of a deputy/attorney to register an account in joint names, so it is best practice to double check with the bank when making the application to ensure that the account is structured correctly for the purposes of a deputyship/LPA.
FURTHER INFORMATION
If you have any questions regarding this blog, please contact Lauren Eyre or our Private Client team for more information.
ABOUT THE AUTHOR
Lauren Eyre joined Kingsley Napley's Court of Protection team in 2017, she deals with the management of deputyships, with a focus on clients diagnosed with dementia and those that have suffered medical negligence resulting in serious brain injuries and long term impairments. Lauren qualified as an Associate, Chartered Legal Executive via CILEx in 2020.
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